James Engle, Resp. v. Jay Dee Miller, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES ENGLE, an individual,
No. 70609-8-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
JAY DEE MILLER, and his separate
property only,
CO
Appellant,
and
CD
JANIS DEE MILLER, as wife and
the marital community composed
vo
thereof,
Defendant. FILED: November 10,2014^,
Trickey, J. — The amount of damages is a question of fact to be decided
by the fact finder, and will not be disturbed so long as the award is within the range
of substantial evidence in the record. Because Jay Dee Miller fails to show that
the trial court's award was not based on substantial evidence, we affirm.
FACTS
The facts surrounding the incident at issue here are derived from the
unpublished opinion ofthis court affirming Miller's conviction for first degree assault
with a firearm, State v. Miller, noted at 161 Wn. App. 1011, 2011 WL 1459805.
Miller allowed James Engle, an acquaintance, to live temporarily in a trailer on
Miller's property. Because the trailer did not have a bathroom or running water,
Engle frequently visited Miller's house. On September 2, 2009, during one such
visit, the two men got into an argument. According to Engle, Miller said, "'Now
you're dead, fucker' and shot Engle twice" with a handgun. Miller, 2011 WL
No. 70609-8-1 / 2
1459805, at *1. One of the bullets grazed Engle's shoulder; the other struck him
in the back of the head, producing entry and exit bullet wounds.
Engle sued Miller, alleging causes of action for assault and battery. On
November 7, 2012, the trial court granted Engle's motion for summary judgment
on the issue of liability and awarded Engle $8,837.00 in medical expenses. The
case proceeded to a bench trial on the issue of general damages. The trial court
heard the testimony of two witnesses, including Engle, and reviewed 11 exhibits,
including Engle's hospital records and photographs of his wounds. The trial court
awarded Engle $145,000.00 in general damages and entered a judgment against
Miller for the total amount of $153,837.00. Miller appeals the trial court's award of
general damages only.
ANALYSIS
A fact finder has discretion to award damages within the range of competent
evidence in the record. Mason v. Mortq. Am., Inc., 114 Wn.2d 842, 850, 792 P.2d
142 (1990). This court will not disturb an award of damages made by the fact
finder unless itis "outsidethe range ofsubstantial evidence in the record, or shocks
the conscience, or appears to have been arrived at as the result of passion or
prejudice." Mason, 114 Wn.2d at 850.
Citing Bunch v. King County Department of Youth Services, 155Wn.2d 165,
176,116 P.3d 381 (2005), Miller suggests that our review of the trial court's award
should be de novo. But Bunch is clear that the de novo standard of review applies
only when the trial court remits a jury's award. 155 Wn.2d at 176. Because here
No. 70609-8-1 / 3
there was no remittitur by the trial court, abuse of discretion is the appropriate
standard of review. Bunch, 155 Wn.2d at 175.
The question is therefore whether the amount was outside the range of
substantial evidence. Miller asserts that the evidence was insufficient to support
an award of $145,000.00 because Engle's wounds were merely superficial and
Engle did not exhibit any emotional distress when he was initially admitted to the
hospital.
However, in the absence of a full and complete trial record, it is not possible
to review the challenged evidence in the context of the rest of the evidence
presented. Miller failed to provide a verbatim report of proceedings of the trial and
designated only one exhibit comprising Engle's hospital records from September
2 and 3, 2009. The trial minutes show there was evidence presented from which
the trial court was "satisfied that the Plaintiff suffers from migraines, experiences
'white flashes,' has a heightened level of distrust and nervousness, has generally
withdrawn from daily activities, and has suffered . . . physical damages related to
the scarring."1 A party seeking review bears the burden of perfecting the record
on appeal, and an insufficient appellate record precludes review of the alleged
errors. Bulzomi v. Dep't of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996(1994); see also RAP 9.2(b) ("If the party seeking review intends to urge that a
verdict or finding of fact is not supported by the evidence, the party should include
in the record all evidence relevant to the disputed verdict or finding."). Absent an
affirmative showing of error, we presume a trial court's decision to be correct. State
Clerk's Papers at 39.
No. 70609-8-1 / 4
v. Wade. 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Because the record is
insufficient to show the award was outside the range of substantial evidence, we
affirm the judgment of the trial court.
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WE CONCUR:
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